The Narendra Modi government’s decision to approve 10 per cent reservation in jobs and education to the economically weak sections in the General category is not in line with the principle of affirmative action in the Constitution.

The government on Tuesday and Wednesday tabled a Bill in Lok Sabha and Rajya Sabha, respectively, to amend Articles 15 and 16 of the Constitution since they do not provide for reservation on the basis of economic condition.

The government has said that the Bill once passed would amend the Constitution accordingly to permit reservation to the poor among the General castes.

What the Constitution says

Article 15 (4) of the Constitution says, “Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”

Article 16 (4) of the Constitution says, “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

If we read the two Articles together, it is clear that the founding fathers of our Constitution wanted special provisions to be made only for “the socially and educationally backward classes” and for those who are inadequately represented in the services under the State.

Articles 15 and 16 are often misread and misinterpreted. The principles of affirmative action in these articles are often misunderstood as provisions for alleviation of poverty. One needs to understand that the idea behind affirmative action whether in India or any other liberal democracy should be to make sure adequate representation of historically marginalized sections of society in the State’s power centres. Reservations in India are designed to secure representation of these sections in two of those power centres, higher education and government jobs.

Reservation or affirmative action policies are not meant for advancing a community’s economic conditions.

Over-representation of upper castes

Now, the question that arises is whether upper castes are inadequately represented in the services under the State and whether they really need quota.

The current breakup of caste-based reservations in the country is: 27 per cent for Other Backward Castes (OBCs), 15 per cent for Scheduled Castes (SCs) and 7.5 per cent for Scheduled Tribes (STs). Population-wise breakup of above-mentioned social groups is as follows: SCs constitute 20 per cent, STs 9 per cent and OBCs constitute around 41 per cent of the population. It is clear that 70 per cent socially and educationally backward population are theoretically guaranteed only a 49.5 quota while 30 per cent upper castes are eligible for a share of up to 50.5 per cent.

In July 2016, Ministry of Personal, Public grievances and Pensions (http://164.100.47.190/loksabhaquestions/annex/9/AU573.pdf), while replying to a question on the representation of SC, ST and OBCs in the central government jobs, said, “As per information received from 71 Ministries/ Departments, the representation of Scheduled Castes, Scheduled Tribes and Other Backward Classes in the posts and services under the Central Government as on 01.01.2014 is 17.35%, 8.38% and 19.28%, respectively.”

This means backward castes that constitute around 70 per cent of the population have been able to get only 45.01 per cent jobs while the castes in the general category that constitute only 30 percent have secured 54.99 per cent jobs. On top of this, the government is now offering a separate 10 per cent reservation to the economically weaker section among the upper castes.

Certainly, the economically weak among the upper castes should get government’s assistance and there should be provisions to ensure their betterment, but reservation is not the way to go.

The problem of implementation

The Bill that the government tabled in Parliament is likely to introduce criteria like an annual income below Rs 8 lakh and not owning more than five acres of agricultural land for those seeking the 10 per cent quota benefits.

It is important to note that yearly earnings of individuals working in the unorganized sector can be highly unstable/volatile. So, how is the government is planning to go ahead with the income criterion?

According to the government data, India’s per-capita income stood at Rs 1,12,835 during the last fiscal ended March 2018. Now, juxtapose this figure with the maximum annual income a person from upper caste could have in order to avail reservation in 10 percent category – that is 8 lakh. It means a person from general category who earns 7 times more than the average income earned by a person in the country is eligible for the reservation.

No one seems to have a clue how the government settled for the Rs 8 lakh figure. Why is a person from the General category with Rs 8 lakh annual income is considered poor? Why the threshold can’t be, say, Rs 10 lakh or Rs 6 lakh. What are the parameters?

Consider this: Under the Ministry of Social Justice and Empowerment, there are income limits for the parents/guardians for students belonging to Scheduled Castes (SCs) to be eligible for various scholarship schemes.

Income limit for National Overseas Scholarship (NOS) for SC students is Rs 6 lakh while income limit for Top Class Scholarship scheme for SC students is Rs 4.50 lakh. So if a student from SC category whose parents’ income is, say, Rs 7 lakh will be considered rich while an upper-caste student whose parents’ income is Rs 7 lakh will be considered poor!

Several of such technical discrepancies will emerge following the implementation of the 10 per cent reservation for the “economically weaker section” in the general category.

The government may also have to face some legal hurdles. In 2016, the Gujarat High Court had issued a notice against the state government’s approval of 10 per cent quota for the economically backward classes. The court had termed the government ordinance as “inappropriate and unconstitutional”.

This is not the first government to woo upper castes in this fashion. P.V. Narasimha Rao-led Congress government in 1991 had issued an Office Memorandum (OM) approving 10 per cent reservation in government jobs to economically backward sections in the General category after the government it had succeeded, led by V.P. Singh, had approved the implementation of reservation for the Other Backward Classes (OBCs) as recommended by the Mandal commission. The Supreme Court had, however, scrapped the move noting that it would be not be “constitutionally permissible”.

Copy-editing: Anil Varghese

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